After the Cartobia reform on the subject of reparative justiceespecially in the crimes of gender violence, Red codea large debate has opened between those who consider it a form of re -education of the offender and a way to reinsert the offender into society and those who see it as an injustice for the victim. We deepened the topic with the contribution of the lawyer Stefano Grollaof the Golla Law Firm, specialized in assistance and litigation in the sectors of criminal law, civil law, banking and corporate law as well as in family law and protection of the minor.
REPAIRATIVE JUSTICE: An opportunity for re -education or an injustice?
Riparous justice boasts an organic discipline for the first time thanks to articles 42 to 67 of Legislative Decree no. 150/2022 (CD Cartobia reform), which, by dictating the regulatory rules on the matter, conforms to what has already been sanctioned at a supranational level (it is appropriate to mention, inter alias, there Declaration of the Ministers of Justice of the Member States of the Council of Europe on the role of reparative justice in criminal matters of 13 and 14.12.2021 or the Recommendation of the Council of Europe relating to reparative justice in criminal matters Cm/rec (2018) 8). The criminal processual institute subject to examination consists in the free, consensual, active and committed participation of the victim of the crime, of the person indicated as the author of the offense as well as other subjects belonging to the community, to a program, developed by an adequately formed third party (CD Center for Riparative Justice), aimed at resolving the issues deriving from the crime.
The reference discipline is now contained in art. 129 encore CPPaccording to which access to reparative programs takes place in any state and degree of the procedure – including the executive phase of the sentence – regardless of the severity of the crime or the quantum of penalty imposed, ex officio or at the request of the party, subject to verification by the proceeding judicial authority of the existence of the necessary application conditions: i.e. the performance of the program may be useful for the resolution of the issues deriving from the fact for which it proceeds and does not involve a concrete danger for the interested parties and for the ascertainment of the facts (Pursuant to paragraph 3 of art. 129 encore CPP).
As already announced, the Cartobia reform, worthy of having established a uniform discipline in terms of reparative justice, also has it procedural relevance innovated. In fact, the report drawn up at the end of the program, having a positive result:
- grants the recognition of the mutating circumstance referred to in art. 62 n. 6 cp;
- determines the silent remission of the lawsuit, if the plaintiff takes part with the author of the crime;
- is among the application conditions of the conditional suspension of the penalty (former 163 Last paragraph cp).
It will therefore be convenient for the ratio underlying by the legislator it is to encourage a constructive dialogue and widely inclusive between the author, the victim of the crime and the community, which requires a concrete mutual commitment, sometimes much more satisfying and sati -instructive of “punitive” justice. However, despite the most rosy purposes, this institute remains in a “shadow area”, still unexplored. Indeed, reparative justice proves – in the opinion of many – not acceptable as well as unusable in certain circumstances and has also been the subject of numerous criticisms, especially in terms of “Red code“where the attacker would find himself in close contact with the victim of the offending abuses. On this point, what is of main importance to underline and understand is that reparative justice is not aimed at the forgiveness of the offender, but to the reworking of what happened through a structured and competently developed path, which has as its primary interest the good of the subjects involved in the affair de here: the victim has the possibility of turn pagewhile the offender to undertake a re -educational path and social reintegration. In fact, what has not been fully understood is that through reparative programs the damage caused, but are designed and practiced aware and responsible actions towards the other, which can restore meaning, where possible, to the bonds, are not “repaired”, fiduciary among people. In order for this to happen and reparative justice asserts itself to the point of appreciating all its facets – still unexplored – however a greater social commitment, given is desirable First of all From a network of associations willing to offer their professionalism on the subject, as well as by a culture open to change, willing to accept it.
